Sargent v. Herod

3 Iowa 145

• Court: Supreme Court of Iowa
• Decided: June 15, 1856
• Status: Published

Opinion

Stockton, J.

It is conceded, on the part of the plaintiff, that the point C on the diagram, claimed by the defendant as the true corner, is the place where the corner should be established, if all evidence of the original corner is wanting. The point C has been ascertained by the witnesses with accuracy, and the surveys were no doubt made by them with great care; but can we overlook the evidence that the corner originally established, was at B ? Five witnesses testify that they found at B what they believed were the evidences of the original corner. The testimony of the witnesses for defendants on the same point, amounts to no more than this; that they did not meet with such evidences, and were not convinced that any such existed. We do not know with certainty, that they ever examined the stump, taken to be the stump of the bearing tree, by the witnesses on the part of plaintiff, and described by them. They may have been at another stump than that spoken of by plaintiff’s witnesses; for there is no certainty that their testimony refers to the same one to which the testimony on part of the plaintiff refers-But even on the supposition that they all refer to the same stump, five of the witnesses give their opinion that it is the stump of the bearing tree of the corner, while three testify that they were not convinced that it had ever been a bearing tree. We think that the weight of the evidence is in favor of the plaintiff, that the corner was originally established at B on the diagram. The general rule is, that courses, distances, admeasurements, and'ideal lines, should yield to known and fixed mouuments, natural or artificial, upon the ground itself. Cleaveland v. Smith, 2 Story, 288.

The judgment of the District Court is therefore affirmed.